Who’s the Father?
February 19, 2020 § Leave a comment
Michelle Pope and Brian Martin married in 1994. In 2006, Martin had a vasectomy. In 2007, while separated from Martin, Pope became pregnant by Daniel Fountain. All of them knew that Fountain was the biological father, but Martin was listed as father of the child, J.M., on the birth certificate.
Pope and Martin resumed living together, and both worked to support the child. Fountain was allowed to visit with and babysit the child.
In 2012, when the child was 5 years old, Pope and Martin were divorced. The divorce decree named Martin as father, granted custody of J.M. to Pope, granted visitation to Martin, and ordered him to pay child support and provide insurance covering the child.
In 2016, Fountain filed an emergency proceeding seeking temporary custody of J.M., claiming abuse by Pope. The court granted Fountain his temporary relief, which necessitated a full custody trial, but Fountain had filed in a different district from that where the divorce was granted, and so the case had to be transferred to the divorce court and it was.
In the course of proceedings, the chancellor noted several times that Martin (remember him?) had been adjudicated the father, making him a necessary party. But he was never joined, even though he did testify at trial.
Following the hearing, the chancellor adjudicated Fountain to be the father of J.M. and entered a “temporary order” granting Fountain visitation. Michelle appealed, arguing that Martin should have been joined as a party.
In Pope v. Martin, rendered December 17, 2019, the COA reversed and remanded in a unanimous ruling. Judge Corey Wilson wrote the opinion:
I. Rule 19(a)(1)
¶21. As noted supra, for the entirety of J.M.’s life (arguably until now), Martin has been considered J.M.’s legal father. And pursuant to a George County divorce decree, Martin has joint legal custody of J.M., visitation rights, and child support responsibilities. Given these rights and responsibilities, it is apparent that “in [Martin’s] absence complete relief cannot be accorded among [Pope and Fountain]” in this action. M.R.C.P. 19(a)(1).
¶22. Pope has asked the court to “award [her] the sole paramount care, custody and control of [J.M.], as well as [establish] permanent child support payments to be made to [her] . . . .” And in his counter-petition, Fountain has requested a full hearing on the merits to determine
permanent custody, visitation, and support rights and obligations of the parties. If Martin is the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. not added as a party to this action, the chancery court risks conflicting orders regarding J.M. and his custody, his child support, and his accessibility for visitation.
II. Rule 19(a)(2)
¶23. Along this same vein, Martin “claims an interest relating to the subject of th[is] action,” namely, J.M.12 And the complete “disposition of th[is] action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” M.R.C.P. 19(a)(2). Pope notes that disposition of this action has the potential to diminish Martin’s “custodial and visitation rights” as well as dilute Martin’s “rights of inheritance.” We agree, though we do not know why Pope—who as plaintiff sought the very relief the chancery court granted—did not include Martin as a party at the outset or after any of the multiple times the chancery court instructed the parties to join him. Moreover, complete disposition may leave Pope at risk of being subject to inconsistent or contradictory obligations in regard to J.M.’s visitation with Martin and Fountain. For these reasons, we find that Martin is a “necessary party” to this action. See Mahaffey [v. Alexander], 800 So. 3d [1284]at 1285 (¶5).
¶24. “In discussing the joinder of parties under Rule 19, our supreme court has stated that the ‘failure to join interested parties . . . under M.R.C.P. 19(a) justifies reversal and remand as a violation of fundamental due process.’” Am. Pub. Fin. Inc. v. Smith, 45 So. 3d 307, 311 (¶9) (Miss. Ct. App. 2010) (quoting Bd. of Educ. of Calhoun Cty. v. Warner, 853 So. 2d 1159, 1170 (¶38) (Miss. 2003)). This is true even if, “on remand, the same result might be reached.” Powell v. Evans, 113 So. 3d 1270, 1275 (¶23) (Miss. Ct. App. 2013); see also Davis v. Guar. Bank & Trust Co., 58 So. 3d 1233, 1238 (¶26) (Miss. Ct. App. 2011). Accordingly, we reverse the chancellor’s judgment establishing paternity and remand for further proceedings once Martin has been properly joined.
[Fn 12] Martin testified at the May 22 hearing that he considered J.M. to be his child and that he has no intention to voluntarily disestablish paternity.
The opinion states at ¶2 that “Pope … now appeals from the judgment establishing paternity and the temporary order.” At ¶17, the court held that it had no jurisdiction to consider the temporary order, citing McDonald I and II. A temporary order is not a final, appealable judgment per MRCP 54. “We find nothing to review about this explicitly temporary order entered three years ago. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (appellate review of temporary orders is improper.)” McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss. Ct. App. 2002).” McDonald v. McDonald, 876 So. 2d 296, 298 (Miss. 2004) [My emphasis].
Early Morning in the French Quarter
February 14, 2020 § 4 Comments
The French Quarter pre-dawn and early morning of the morning after.
The streets are mostly quiet, free of tourists, although there are folks out and about. Now and then a drunk staggers into view, sometimes crying out, sometimes desperate for balance. But mostly it is people hurrying by, nodding good morning or keeping to themselves. Some are headed to or from work, or just passing through on their way from one place to another. There are the street people, denizens of the night who sleep on the sidewalks. There are others already at work, cleaning, picking up garbage, prepping food, tending bar at the few all-night joints. Shadowy figures appear and disappear around corners. And there is the ubiquitous trash strewn from pilfered trash bins, and discarded drink containers, beer bottles, pizza boxes, food, and other refuse dropped by visitors on the streets and sidewalks.
Tôt le matin dans le Vieux Carré. Here is New Orleans on two foggy mornings in December.
“Quote Unquote”
February 7, 2020 § Leave a comment
“There are in fact four very significant stumbling-blocks in the way of grasping the truth, which hinder every man however learned, and scarcely allow anyone to win a clear title to wisdom, namely, the example of weak and unworthy authority, longstanding custom, the feeling of the ignorant crowd, and the hiding of our own ignorance while making a display of our apparent knowledge.” — Roger Bacon
“Not curiosity, not vanity, not the consideration of expediency, not duty and conscientiousness, but an unquenchable, unhappy thirst that brooks no compromise leads us to truth.” — G. W. F. Hegel
“You touch on a disheartening truth. People never want to be told anything they do not believe already.” — James Branch Cabell
Reprise: The Lawyer as Puppeteer
January 31, 2020 § Leave a comment
Reprise replays posts from the past that you may find useful today.
COACHING FROM COUNSEL’S TABLE
June 20, 2012 § Leave a comment
Atty 1: Can you tell the court why you did not call the police right away when you say that he hit you and knocked you down?
Atty 2: Objection. The witness could not have called because her husband had broken the telephone before he hit her.
That, my friends, is a speaking objection. It’s a pernicious, baleful, noxious thing, odious to judges. So what exactly is the big problem with speaking objections? Let’s look at what predictably happens next in that trial we started above …
Judge: Objection is overruled.
Atty 1: Judge says you can answer my question.
Witness: Well, I could not call because my husband had broken the telephone before he hit me.
How could one expect a different answer after her attorney told her what to say?
One of the most important functions of a chancellor is to weigh the credibility of witnesses and to determine the weight to give to their testimony. I think most chancery judges, if not all, would assign that witness’s testimony on that point almost no weight at all because it was not her testimony.
I have had to caution counsel not to make speaking objections and to limit any comment on objections to legal bases (e.g., hearsay, irrelevant, compound question, etc.).
Speaking objections actually do your case more harm than good.
Ten Commandments for Your Divorce Case
January 22, 2020 § 4 Comments
This is adapted from a handout that a Tennessee law firm gives to every divorce client. The client is required to date and sign the form, which is kept in the client’s file, presumably for “Didn’t I tell you not to do that?” purposes.
TEN COMMANDMENTS FOR YOUR DIVORCE CASE
I. You are still married until the judge signs the Final Decree of Divorce.
a. You can not date or have sex or sexual contact with anyone, including your spouse, even if you are living together.
b. If you have sex with anyone, it will give your spouse grounds for divorce based on adultery, complicate your case, and cost you money.
c. Your spouse will review your cell phone records and computer activity during the divorce.
II. Do not post to any social media or allow anyone to post on your behalf.
a. No pictures or comments about your divorce on Facebook.
b. No tweets about the divorce or your spouse on Twitter.
c. Do NOT sign up for eHarmony, Match.com or any other dating site.
d. Do NOT post to hook up with anyone on Craig’s List.
e. Do NOT send lewd pictures to anyone.
III. Do not discuss your attorney’s strategy or any details of your divorce with your spouse, friends, or co-workers.
a. Every divorce is different, and what allegedly worked in your friend’s case will not work in yours.
b. If you tell your spouse details about your case, you will lose leverage and it will cost you more money.
IV. Establish a new, secure email account with a password that your spouse can’t guess.
a. Make sure your computer is free of spyware and that you have it password protected.
b. Password protect your cell phone.
V. Be totally honest with your attorney and the staff, and treat them with respect and courtesy.
VI. Remember that, as soon as the divorce complaint is filed, you are no longer in charge of your life. The Court is in charge.
a. You must comply with every order of the court, even if you disagree with the court’s ruling.
b. Do not harass, drunk call or text, follow, shadow, or in any way interfere with your spouse. Judges hate that kind of behavior.
c. Do not make changes to insurance without consulting your attorney first.
VII. Immediately answer interrogatories and requests for production of documents from your spouse’s attorney.
a. There are deadlines that can complicate your case and cost you money if you fail to meet them.
b. Follow the attorney’s directions on how to respond.
c. Do the necessary leg work to collect the necessary information, and organize it. The better you do it, the more money you will save. We have to charge you for the work we do for you.
d. Organize and keep succinct notes about your spouse’s misconduct.
e. Organize and create a record of all financial assets and accounts.
f. Do NOT staple any of the documents you bring us. Organize them by question or request number, preferably in folders.
VIII. Do NOT put your children in the middle during the divorce.
a. We recommend and urge that you immediately enroll in a parenting seminar at http://www.parentingskillsinstitute.com.
b. If your children are having issues, get them to counselling.
IX. Read everything our office sends you … at least twice.
X. You must pay your bill promptly as it comes due and provide additional retainers as requested. To keep your bill down:
a. Avoid endless phone calls and emails to our office. You are charged for every form of communication.
b. Organize your thoughts, questions, and concerns so that only one phone call, email, or office visit covers all issues.
c. Do not send an email and then follow up with a phone call to discuss the same things.
d. Consider finding a good counselor to help deal with the stress of divorce.
Bell Dates for 2020
January 17, 2020 § Leave a comment
Might as well annotate your calendars now for the Bell Family Law seminars upcoming in 2020. Here are the dates:
July 10 Jackson
July 24 Oxford
July 31 Mississippi Gulf Coast
I have said it here before: there are other Mississippi family law seminars, but there is no better Mississippi family law seminar. You will receive a handout summarizing all of the 2019-2020 cases. The lectures analyze the case law and discuss related issues, which in the past have included reproductive technology and bankruptcy. There is an ethics hour.
The only benefit I gain from mentioning this is the improved performance of lawyers who have attended the seminar. And for any judge that is quite a valuable benefit indeed.
A Couple of MEC Points
January 7, 2020 § Leave a comment
Effective yesterday, MEC will allow you to file a combined guardianship/conservatorship. And the civil cover sheet has been amended to add that category for both MEC and non-MEC filers.
Also, MEC does not allow a petition to approve a minor’s settlement to be filed in a conservatorship (reminder: GAP Act term for guardianship of the estate). When the order or judgment approving the settlement is filed, MEC wants to close the file, which can not be done because the conservatorship must remain open. If the order or judgment is filed and the case is not closed, then the order or judgment is not final according to MEC, which means that the clerk can not collect the fee, and the case is not final in the district’s stats. So, you need to file two separate actions with two separate filing fees.
The Better Chancery Practice Blog 